Convicted killer in Polk murder-arson challenges evidence

A judge will decide if a former Polk Township man serving life in his wife's 1988 murder should be granted a new trial based on how a key piece of evidence was stored prior to his original trial.

Comment

By ANDREW SCOTT

poconorecord.com

By ANDREW SCOTT

Posted Oct. 20, 2012 at 12:01 AM

By ANDREW SCOTT
Posted Oct. 20, 2012 at 12:01 AM

» Social News

A judge will decide if a former Polk Township man serving life in his wife's 1988 murder should be granted a new trial based on how a key piece of evidence was stored prior to his original trial.

Jerry Burgos, now 52, was convicted by one jury in 1989 and then another in 1993 of fatally strangling his wife, Nilsa Burgos, 28, and then setting their home on fire to hide his crime.

Nilsa Burgos at the time was seven months pregnant with the couple's third child.

Prosecutors had the staircase, on which they believed Jerry Burgos started the fire, removed from his home and stored in an unlocked East Stroudsburg barn prior to the first trial.

Burgos did not learn the staircase had been stored in a barn until seeing it mentioned in an April New York Post article about his son fighting to clear his name.

Burgos and current defense attorney Phil Lauer are now trying to get the conviction against Burgos overturned, which would pave the way to seek a new trial.

They believe the staircase being stored in an unlocked barn where anyone could have had access to it may have resulted in contamination of that key piece of evidence.

And if the evidence was in fact contaminated, it may have unfairly affected the outcome of the trial, the defense argues.

Friday was the last of a three-part hearing that began in July on the defense's request for a new trial.

Attorney Jane Roach Maughan, the assistant district attorney at the time of the murder, testified in July to having the staircase removed from Burgos' home and stored in the barn.

Michael Hartley, the state police fire marshal at the time, testified in August to conducting the chemical test analysis on the staircase prior to its removal from the home.

Hartley said he knew the staircase was going to be stored somewhere else prior to trial, but not where.

Attorney Marshall Anders, who represented Burgos at trial, testified Friday that he likewise knew the staircase had been stored elsewhere, but didn't know it was in an unlocked barn.

"I thought it was in an evidence room somewhere," Anders said. "Had I known it was where it was, my cross-examination (of Hartley) at trial would have gone differently."

Anders said a defense expert witness had likewise performed a chemical test on the staircase prior to its removal from the house.

In cross-examining Anders, Assistant District Attorney Mark Matthews pointed out that the testing done on the staircase prior to its removal from the house is what truly mattered for trial, regardless of where or how the staircase was stored after removal.

And all agreed, when questioned by Senior Judge Ronald Vican, that no further testing had been done on the staircase after its removal from the house.

Vican will review written arguments by both sides and issue a ruling at a later date on both the staircase issue and Lauer's other request for additional DNA testing on other pieces of evidence.

If Vican rules in Burgos' favor on the staircase issue, this would pave the way for Burgos to seek a reversal of the jury conviction and thus a new trial.